SCOTUS Stays Injunction in FDA v. ACOG
Tonight, the Supreme Court stayed the District Court’s injunction in FDA v. American College of Obstetricians and Gynecologists. This case first entered the shadow docket back in August, when Justice Ginsburg was on the Court. In October, the Court punted, hoping the District Court would dissolve the injunction in light of changed circumstances. No go for Judge Chuang. In December, the SG returned to the Court. After some more briefing, the Court issued an order tonight. Three justices would have denied the stay. Presumably, the five conservatives, plus Chief Justice Roberts voted to grant a stay.
The per curiam opinion was unsigned. The Chief wrote a one paragraph concurrence:
The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic. Here as in re-lated contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the “background, Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in denial of application for injunctive relief) (slip op., at 2). In light of those considerations, I do not see a sufficient basis here for the District Court to compel the FDA to alter the regimen for medical abortion.
The Chief never wastes words. And he packs a lot into this short missive. First, he recites the “undue burden” standard. He doesn’t cite Casey, but he implicitly reaffirms that precedent. He does not allude to the policy’s benefit, per Whole Woman’s Health
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